A Tree Removal Agreement – What Is It?
A tree removal agreement is a legally binding contract between two parties that establishes the terms and conditions under which trees or plants will be removed from a property. It is generally used when a landowner needs to have a tree to be removed, for example, because it poses a safety hazard, is diseased or infested with insects, is dying or dead , or is simply undesirable. A tree removal agreement may also be used when a landowner desires to have a tree to be cut for commercial purposes. This type of agreement may be called a tree-cutting contract/agreement, tree-clearing contract/agreement, tree-trimming contract/agreement, or tree-removal agreement. Regardless of what it is called, however, it is important to have a written agreement that formalizes the arrangement or relationship between the parties.
What are the Elements of a Tree Removal Agreement?
When hiring a professional tree service to remove a tree or branch, a properly constructed agreement is crucial. Such an agreement helps document the scope of work and protects all parties. A contract should be well-drafted and specific to the job to be performed. There are nine components of a tree removal agreement that should be included to avoid problems:
- Description of area where work will be performed. A good agreement will describe the area where the work is to be performed, including any access issues or interference with other properties. For example, are there close by buildings or vehicles that may be impacted during the work?
- Description of tree. A detailed description of the tree to be removed should be included in the agreement, including description of the type of tree, height, condition and proximity to other areas. For example, is the tree healthy, diseased or dead? How tall is the tree? Where is the tree located?
- Scope of work to be performed. A good agreement will contain a good scope of work that describes the type of work to be performed. Will it require high-rise equipment or does the work need to be performed with specialized equipment? Will the work be performed by hand, and will it require the use of ropes and safety harnesses? It is helpful if the agreement gives a good description of the type of equipment and work to be performed.
- Providing access to work area. The party hiring the tree service should consider how the tree service will access the area to perform the work. Usually, a tree service will need access from the street and from any adjacent property. Perhaps the party will need to cooperate to grant the tree service the ability to cut or remove the tree.
- Work hours. Your tree removal contract should include the hours when the tree service will be allowed to work. This element is particularly important for obtaining access to property. For example, if the work area is a large parking lot with cars, it may be necessary for the tree service to obtain after-hours access.
- Identification of neighboring property owners. The party hiring the tree service should ensure that those adjacent property owners are properly identified in the agreement so that their consent may be obtained for access to perform necessary work. This element is particularly important for liability. It is crucial that the tree service make a determination regarding whether the branch to be removed will fall upon someone else’s property (i.e., vandalism).
- Right to hire subcontractors. A great agreement will give the tree service the right to hire subcontractors to perform the work. In this situation, the party hiring the tree service needs to consider whether he or she wishes to consent to the payment of subcontractors by the tree service and his/her rights to be paid once the tree service is paid.
- Indemnification. The agreement or contract should contain appropriate indemnification provisions to protect the hiring party, should the hiring party later be sued for claims arising from the work performed. Although the tree removal contract will usually contain language that the party is hiring an independent contractor, the tree service should be required to indemnify the party from any claims resulting from his or her actions. Any such language will provide protection in the event an injured party sues the party hiring the service.
- Payment terms. A good agreement should contain clear payment terms. The contract should also specify whether the hired tree service will be entitled to payment upon completion of the job, or whether other payment terms apply.
Lawful Compliance and Other Legal Considerations
Tree removal agreements must comply with a number of legal considerations. On the one hand, general construction law requirements must be enforced so that an injured party may pursue a breach of contract suit against the employee (land owner) for damages caused by the contracted tree cutters. The following will provide a general outline of some of the legal requirements and regulations that may arise during the tree removal process.
Under New York’s Multiple Dwelling Law the homeowner (or person hiring a general contractor) must warn the worker, pursuant to Labor Law § 23 which reads:
- All places, buildings, structures, works, or other areas in which construction, repair or excavation work is being performed… shall be kept in a safe and orderly condition…
- It shall be the responsibility of every such owner…who directs the performance of such work to institute and maintain reasonable and adequate precautions….
- It shall be the responsibility of every such owner… who directs the performance of such work to specify the safety measures required under subdivision one of this section in the plans or specifications for such work.
- Every such owner… who directs the performance of such work shall be responsible for the ejection or discharge of any person’s or employees’ weapons of any nature for use in such work.
Local ordinances and zoning regulations must also be met. For example, tree removal may be prohibited within a certain distance of homes or may necessitate the issuance of a certain permit.
Further, according to New York State Environmental Conservation Laws, more specifically, the Article 9 of the General Municipal Law which contains the State Enabling Legislation with respect to Municipal Tree Laws, the State has a few general limitations on municipalities passing their own tree ordinances. Section 9-103 of the General Municipal Law specifically states that the State enables "the governing bodies of cities, towns and villages may by resolution provide for the planting, care protection, preservation, pruning, planting, maintaining and removal of trees in any public highway or public place owned by the municipality." However, the State limits the ability of municipalities to exercise their power to government as follows:
"…unless the improvement and care of such trees pursuant to this section shall be financed in whole or in part by special assessments, no municipality shall adopt a law, ordinance, rule or regulation containing restrictions on the removal of trees on privately owned property, unless a reasonable degree of control is also exercised over trees in public places in such municipality."
Tree Removal Agreements can be contingent on the Land Owner satisfying the requirements of all necessary permits, approvals and environmental/disposal considerations.
Tips for Entering an Agreement to Remove a Tree
Negotiating a tree removal agreement can be challenging, but approaching the process with a clear understanding of the essential terms and conditions can help ensure that the contract is fair, comprehensive and properly tailored to the project. The following strategies can be effective for both property owners and tree removal contractors:
Consult with a Lawyer and Other Professionals Regardless of whether you are a property owner or a contract service provider, consulting with other professionals before finalizing terms can help mitigate any misunderstandings that might otherwise result in the contract not being fulfilled to your complete satisfaction. Owners may want to talk to a real estate or property lawyer. Contractors may wish to take the agreement to an experienced lawyer whose practice focuses on contracts. Further, both sides should consult with an accountant to determine appropriate prices for the project.
Clarify Pricing Both property owners and contractors must pay close attention to logistics, including possible variations in price. For example, it is best to specify the basis on which fees will be calculated. Will there be a flat fee for the entire project? Will the fee be based on hourly labor? Are there any factors, such as parcel size, tree height or volume when it comes to hauling wood, that will play a role in the price? Would any incentives be available for tree removal of a larger number of trees if there is a single job, and how much would these might affect the unit cost? Are there other potential costs that could emerge during the project that would fall on the property owner, such as disposal of other organic material or disposal fees? Is there an estimate available for disposing of the material (chopping it up into mulch, for example)? Having these issues ironed out in advance will prevent disagreements later.
Discuss Timing Owners should ask when the contractors anticipate the work being done and how many other jobs they expect to have on the docket during the relevant timeframe. They should let contractors know if they have any flexibility in their desired dates. Similarly, contractors should clarify what their availability will be and under what circumstances they would be able to move up or delay the schedule to accommodate the property owner. This aspect of the agreement may also involve contingencies for work outside of the control of the contractor, such as inclement weather or the need for equipment repair or replacement. As a related consideration, both parties should explain what will happen if the other party fails to meet the terms of the agreement. It is especially important to clarify what will take place if the tree removal is an emergency due to damage from a storm or other unexpected event.
Build in Communication The agreement should include clauses that require the property owner and contractor to communicate regularly during the planning and execution process. They should consult about issues such as developing the tree removal plan, doing a walk-through of the property and mapping out access to the trees. It is also wise to keep in mind the potential for added legal liability in the case of tree removal that occurs on a neighbor’s property or adjoining land.
Common Mistakes in Tree Removal Agreements
Many people are surprised to learn that even individuals can sign legally binding contracts. It’s for this reason that homeowners should pay close attention to tree removal agreements before signing. Some of the most common issues that arise in these disputes can be avoided entirely with a little bit of extra care.
Some typical mistakes that arise in tree removal discussions are:
- A failure to obtain an accurate estimate of the costs of the work/tree removal
- a failure to be properly insured for the work being performed
- proceeding despite advice not to proceed to do so (to be safe and avoid liability) by city/town/community organizations/owner association
- failure to clean up later , leaving an unsafe mess
- falling trees on structures such as homes (causing personal injury)
- falling trees onto public roads
- and failure to get the required permits from the state, county or local governments.
It is easier for the buyer and the seller to agree and be clear about key issues upfront, rather than sorting things out once it becomes a "he said she said" battle. It’s always better to be safe than to be sorry, especially when it comes to your trees (and your wallet).
Tree Removal Contract Disputes
When a dispute arises between the homeowner and the contractor over the proper performance of the tree removal agreement, there are certain measures which may be taken to settle the issue. If the homeowner is unhappy with the manner in which the work was performed, they should in writing inform the contractor of the specific problems that the homeowner has with the work. If the perceived problems are clear, it may make it easier for the contractor to remedy the situation and it may avoid the need for further disputes.
If the homeowner feels that the contractor’s performance is improper, one avenue is to withhold payment as a means of settlement. A contractor can also withhold payment if the homeowner has not performed his or her obligations under the contract. If the parties are unable to resolve their differences, then a lawsuit may need to be initiated by the aggrieved party. Such litigation will focus upon which party has breached the agreement and whether there is any damage that should be awarded as a result of the breach. The aggrieved party may also seek other judicial remedies, such as rescission of the contract or money damages or specific performance. An agreement to arbitrate any dispute may be included in a tree removal contract and eliminate the need for a judicial proceeding. Mediation is another mechanism that may be utilized in order to first attempt to resolve the problem and avoid any litigation. The American Arbitration Association sets forth certain arbitration rules which may be applicable to tree removal contracts which are in writing and which provide for the application of the Association’s rules. The Association’s rules for the mediation of disputes are used in the same way.
Conclusion: How to Achieve a Successful Tree Removal Project
In conclusion, a well written tree removal agreement must detail the scope of work to be performed, specify the exact location of the trees to be removed, incorporate any carving or damage to the surrounding areas, outline the protection of all existing improvements including the home sites and landscaping, incorporate on a worker’s compensation insurance policy, and include careful language regarding how responsibility and liability are allocated between the parties. In addition, tree removal agreements should contain the following provisions: In considering the best way to protect their homes, business or property, it is important for the individuals involved to be fully protected for any damage that may occur as a result of the work being performed in connection with the removal or trimming of a tree. While tree removal agreements are often not considered significant, it is important to remember that these contracts should name the property owner and the contractor as additional insureds on the other party’s liability insurance policy and that the contractor is responsible for acquiring a worker’s compensation policy. Even with a contract in place containing these provisions , it is also a good idea to do research and investigate the insurance status of those involved. A great way to obtain important details regarding the insurance standing of a potential contractor is to request a Certificate of Insurance from the contractor or prospective contractor before you agree to the removal of a tree. Be sure to be as contained and thorough as possible on what it is you are asking to be included in the agreement so there is no question as to what you and your attorney consider unreasonable to include in a tree removal agreement. It is also most important to remember that the contract for tree removal or landscaping work contains the same assumption of risk and liability allocation as a typical construction contract where a contractor is performing work on a property. Therefore, tree removal agreements or green industry contracts are typically most favorable to the contractor when not reviewed. In addition, as was demonstrated in the case discussed above, homeowners, business owners and property owners are not protected from liability for injuries incurred by others, such as a neighbor, who may have been injured while a contractor was removing a tree near your property.